Tuesday, March 20, 2012

What Is The Law Of The Land?

After posting my previous entry, I received several communications, of which this one was typical:

Rock,

I loved your explanation of what it really means to follow the law of the land. I think every member of the church should read it because it would do away with a lot of confusion in the church. The only problem is I can't forward it to my father because if he senses anything that isn't completely adoring about Mitt Romney, he will stop reading and go no further. Also, I think your choice of a title was unfortunate, because I think that will also keep some people from reading it. Is there some place I can direct people to so they can learn about the law of the land without all that controversial baggage?

Well, first off, don't blame me for the title. Those were my mother's words, not mine. (Although I must admit my own wife counseled against my use of them.)

But this reader has a good point. I think this topic deserves to stand alone so that others can link to it. Indeed, when I write future posts regarding our political responsibilities as latter-day Saints, I think it would be helpful to point to an exegesis on the law of the land that was not buried inside another piece that has only a limited shelf life.

So with that in mind, I've decided to rework the pertinent parts of that last essay into this new one, so that we have a kind of standalone explanation of what it really means to follow "the law of the land." Those who have already read the last piece will find much here they have already seen, but although I have had to truncate the essay in some places, I've added some new information that demonstrates how far afield we have come from God's original intent. Also, I've added an addendum for those who just can't get enough legal citations in their lives.

So Here we go:The Most Misquoted Phrase In The Church
We hear the phrase, "The Law of the Land" bruited about quite a bit within the church, often by members who shrug in resignation over some legislation they disagree with, saying, "What can we do? It's the law of the land now, so we are commanded by God to obey it."

Most members who believe that way usually can't even reference the scripture. Here is the pertinent part in Doctrine & Covenants 58: 19-21:

19. For verily I say unto you, mylaw shall be kept on this land... 21. Let no man break the laws oftheland, for he that keepeth the laws of God hath no need to break the laws of the land. (Emphasis mine.)

So what does this mean? Could it really be that every statute, act, ordinance, rule, and regulation passed by the legislature represents "the law of the land," and therefore the law of God which must be obeyed?

Not hardly. The law of the land always trumps the laws of governments, as the law of the land embodies God's protection for all his children.

When Joseph Smith wrote down that revelation, he was well aware that the phrase"laws of the land" (also rendered in the singular as "law of the land") had a specific meaning which everyone living at that time fully understood. Sadly, it is a meaning not one person in a thousand is aware of today, least of all a good many of those members of the church who are so fond of bringing it up.

As far back as Runymede, the phrase "law of the land" had a very specific meaning under the common law which was well known to everyone. Joseph Smith was familiar with it, as were our founding fathers and everyone who lived in their day. To follow the laws of the land did not mean obedience to all the laws that operated within a particular country. Quite the contrary. Derived from the latin Rex Terrae, "The law of the land" might be more accurately rendered as "the designation of procedural laws that operate to protect a person living on the land." The law of the land came to represent, according to The Encyclopedia of the American Constitution, "that body of fundamental law to which appeal was made against any oppression by the sovereign."

In plain English, "the law of the land" didn't mean you were obligated to obey every whim of government. It actually protected you from being harmed by every whim of government.

If, after spending a lifetime of carrying around in your head a mistaken idea about what is actually meant by "the law of the land" and you're having a tough time wrapping your head around that simple definition, it may be instructive to examine the opposite meaning of the phrase.

What is the opposite of the law of the land? That would be the law of the sea, of course.

Welcome Aboard, Matey! Just Stow Yer Rights At The Dock
If you were an English freeman in the 17th and 18th centuries and decided to sign on as a shipmate to sail the seven seas, you would have understood that you were also signing away your rights as a free man upon the land. Once at sea you could no longer claim any of the basic rights that naturally accrued to you as a citizen of the crown. And there were some very sensible reasons for why that was.

A rickety wooden ship in the middle of the ocean is a very dangerous place to be, so there was little room for careful legal deliberations when neglect occurred. One unfortunate slip-up could put the entire crew in deadly peril. The Captain's close supervision and precise execution of every detail was what was meant by "running a tight ship." All hands were assigned specific duties that had to be performed with precision, often down to the second, and if your job was to hoist the mainsail or batten down the hatches, and by some fluke you managed to inadvertently raise the mizzenmast and lower the boom on some other poor sailor, your punishment would be swift and harsh. There was no due process shipboard guaranteeing you a trial by jury of your sailor peers. Whatever went wrong may not have even been your fault, but someone had to be punished, and out there at sea, one bloke was as good as another. On the high seas, there was no shared "common" law. The word of the Captain was the law.

To take an example from the notorious -+Captain Queeg, suppose someone had stolen strawberries from the ship's galley. Under the system of law that operated on the land, an attempt might be made to find the actual culprit and carefully and methodically bring the thief to justice. But under the law of the high seas, justice wasn't expedient; what was important was that someone be punished for the crime immediately, if for no other reason than to set an example. It could be the guilty party who gets punished, or it could be pretty much anyone else. Sometimes the whole crew would be punished for the crime of one man, a system of law I call My Father's Law, who often announced to us kids, "I guess I'll just have to spank all of you just so I know I got the right one."

What mattered most at sea was that someone was made an example of so that everyone else would think twice before helping themselves to the strawberries. Actual guilt or innocence was not the prime directive at sea; what was important was that the captain ran a tight ship.

Punishment at sea was often more extreme than punishment for crimes committed on land. They almost never matched the crime, which was a requirement of the common law on land. If you were lucky, you would just be thrown in the brig. But most likely you would be tied to the mast and flogged with a Cat o' Nine Tails, a whip with sharp pieces of bone embedded in the ends which would tear the flesh off your back in tiny chunks.

Although a ship's captain had almost complete carte blanche under the law of the sea, rarely was he permitted to summarily execute men under his command. But if he wanted, he could punish a man by having him keelhauled, a torturous ordeal that nearly always resulted in the agonizing death of the victim.

Truth be told, although the safety of his crew was important to the Captain, their safety paled in importance to the safety of the ship itself and its valuable cargo. A ship's captain had a fiduciary responsibility to the company of investors for whom he answered, and there was absolutely nothing of more paramount importance to the captain of any ship than to return that ship and its cargo safely to port. If he were to lose his ship, he could be thrown in irons, his personal estates taken as recompense as well as the property of his mother, father, brother, sisters, uncles, aunts and cousins throughout the land, after which they might also be put in irons, too.

This is why you've heard the saying "the captain always goes down with the ship." It had nothing to do with the captain being brave and heroic. If a ship ran aground or crashed on the rocks, the rest of the crew might escape in the lifeboats, but every British captain knew that drowning at sea was far preferable to returning to England and trying to explain to the board of the East India Company how he managed to return to England while his ship and its cargo did not.

So that's why the captain was the first and final word at sea, and his word was law. It was self protection over everything else. And you may have guessed that it was the moneyed interests behind the crown such as the East India Company who supported this system -which the people on the land would not have stood still for- in order to protect their own commercial interests.

This law of the sea was known, under various permutations, as the law of Admiralty, Maritime, Military Law, Commercial Law, or a variety of other names, but what it came down to was expediency. Justice was not the object, expediency was. Whereas on land the object is that before you exact punishment on a man you want to carefully make very sure you got the right guy, on the high seas there was no such compunction. A guess was as good as a a mile.

On the high seas you had no right to face your accusers and challenge their testimony, no right to counsel, no right to examine evidence against you, no jury of your peers -none of the rights you had on land. Under Admiralty Law the aim was to punish without proof, as that was simpler and more expedient for the governing body to deal with.

Which is why kings and tyrannical governments have, since ancient times, constantly tried to sneak Admiralty Law back up onto the shore. It's way more convenient than having to abide by that pesky law of the land.

The Perfect Law of Liberty
Here is how Law of the Land is defined in Bouvier's law dictionary, the first dictionary of American law, and the only law dictionary given official weight by an act of congress. Bouvier's definition is pertinent because it was first published in 1839, during the lifetime of Joseph Smith. If you wish to have an understanding of what "Law of the Land" meant to those living in Joseph Smith's day, Bouvier's is the place to look:

Law of the Land. The general law; A law which hears before it condemns, which proceeds upon inquiry, and renders judgment only after trial. The meaning is that every citizen shall hold his life, liberty, and property and immunities under the protection of the general rules which govern society.

When attempting to ascertain the meaning of words and phrases in common use during a certain period, it's always best to refer to sources close to that period. Thus, if we wish to know what the founders meant by their use of the phrase "law of the land," a good authority would be Lord Edward Coke, a 17th century English barrister whose works were a major influence on the men who drafted our constitution. Coke defined "law of the land" as synonymous with "due process of law" and further clarified that due process was the divine, god-given right of all men everywhere, not just those living in England.

This is consistent with what the Lord revealed to Joseph Smith in 1833 when he affirmed the "law of the land which is constitutional, supporting that principle of freedom in maintaining rights and privileges, belongs to all mankind, and is justifiable before me." -D&C 98:5 (Emphasis mine.)

This declaration from the Lord stands in stark contrast to the opinions of many politicians today who insist that only American citizens are entitled to due process, and therefore our government is justified in locking away foreign nationals indefinitely in torture dungeons such as Guantanamo and Abu Ghraib. Of course, if these politicians are averse to taking their counsel from LDS scriptures, they could at least consult the fifth amendment to the constitution, which agrees with God that NO PERSON, not just American citizens, shall be deprived of their liberty without due process of law.

The Law Of The Sea-On The Land
The American colonists at the time of the revolution did not envision themselves as some new breed of persons called Americans. They thought of themselves as Englishmen living on the American continent, and as Englishmen, they were entitled to the same treatment under the law as anyone who actually lived in England. But King George did not treat the colonists as Englishmen on the land. He treated the thirteen colonies as if they were thirteen ships anchored somewhere far across the sea. In the mind of the king, the people in the colonies existed to serve England, to provide her people with raw materials such as lumber, cotton, silk, sugar, and tobacco. Were they not originally chartered for these purposes by the king's predecessors? Then they should just tote that barge, lift that bale, shut the hell up and obey their captain.

When Thomas Jefferson wrote the Declaration of Independence, he structured it as a legal Complaint, formally laying out the specific ways in which the king had, in effect, been applying the Law of Admiralty on the land where it didn't belong. The Declaration of Independence was the colonist's demand for their rights to the law as normally applied on land under English common law, not this strange, illicit hybrid of Roman/Babylonian/Clipper ship bullcrap the king was using to rule over them. The colonists lived on the land. They should not be ruled by the law of the sea.

The Constitution was created to embrace, embody, and codify the law that was properly applied to those living on the land, its purpose being the protection of the rights of the individuals on the land against the encroachment of government. The constitution even included within itself a clause that identified it as the supreme law of the land. That meant that any subsequent ruling proposed by government would be required to undergo the process of being measured against that document. No longer would kings and tyrants be able to shove the law of Admiralty up onto the land, where men were recognized as being free from maritime restrictions. The supreme law of the land forbade that from ever happening again.

But would-be tyrants do not police themselves. "The price of liberty," as the saying goes, "is eternal vigilance."

In the addendum below I am including the full excerpts from The Encyclopedia of the American Constitution which define both Law of the Land and Due Processof Law. You'll notice that included in the definition of the former is the statement that "it has...become commonplace to think of decisions of the Court as the law of the land."

Those of us seeking to understand God's word as given in the early 19th century should not be concerned with modern assumptions of the meaning of those words. You will notice that the Courts themselves have always defined "Law of the Land" correctly, but it has been ignorant people making their own assumptions about its meaning that has led to the incorrect modern interpretation, especially among latter-day Saints.

Such ignorantly applied usage is one reason we find even LDS general authorities teaching astonishing falsehoods that contradict both scripture and common sense, such as when James E Faust declared at the July Fourth Freedom Festival in 1995:

"I was drafted for three years during World War II and served because it was the law of the land...My father served in the American Army during World War I because it was the law of the land of his citizenship. His German cousins were in the same position, serving in the German Army because it was the law of their land."

Incredibly, Elder Faust was declaring that members of the Lord's Church were somehow obligated to obey any law promulgated by legislature or dictator, even if the foreseeable outcome of that law had resulted in his father being killed by his own cousins! Common sense alone would whisper that God would not require any man to violate conscience or religion, yet Faust was convinced the arbitrary laws of man superseded morality.

Faust went on to describe a conversation he had with a new convert who advocated protesting against abortion:

"I told him that it was our belief that even though we disagreed with the law, and even though we counseled our people strongly against abortion, and even though we bring into question the membership of those involved in abortion, we are still obliged to recognize the law of the land until it is changed."

Such a gross misinterpretation of "law of the land" would horrify the saints in Joseph Smith's day, not to mention America's founders, whom President Faust was ostensibly present at that July 4th event to pay homage to. Elder Faust had been an apostle for 29 years, and before that he was a lawyer (!), but his sophistic attempts to shoehorn man's law into an awkward fit with God's law simply illustrates how pervasive and deeply ingrained this false interpretation has become in the church.

Any thoughtful latter-day Saint reading about the law of the land as promoted by the Lord should instantly recognize that His law is not the kind of law that can be changed or improved upon at the whim of dictators, presidents, judges or legislatures. The "law of the land" is not a collection of statutes that you and I are required to obey. It has nothing whatsoever to do with positive law of the sort that can be imposed on a people against their will and which the people are required to meekly endure.

Rather, it is procedural law which God expects to be followed by governments for the purpose of protecting His children from abuse.

We Mormons are fond of declaring our devotion to "the law of the land." Wouldn't it be helpful if we simply understood what that phrase actually means?

*****

Addendum
I was recently drawn into a Facebook debate with a member of the church who simply refused to accept my explanation for the meaning of the law of the land as laid out above. He demanded I provide him additional proof of my assertions. Believe me, I understand his cognitive dissonance. For most of us, our entire lives in the church were spent in the belief that we were required to obey every single demand the government made of us without question. Rolling over and doing what we are told is what makes us model citizens and exemplary latter-day Saints.

But I had a suggestion for this member. He could do what I did twenty years ago when I found the conventional interpretation appeared to contradict God's word at every turn. He could look up the meaning for himself.

Another, less strident correspondent asked if I could provide further information on the subject because he was having difficulty fully understanding it. So to satisfy these two brothers, and anyone else inclined to further research on the subject, I have included here some excerpts from various legal authorities. Since "law of the land" is synonymous with "Due Process," I'm including some definitions of the meaning of the latter also for those who may not be fully aware of what that means. But first, a brief explanation on sources.

There are two major encyclopedias on American law: American Jurisprudence, and Corpus Juris. Both are now available digitally, but unless you have a subscription to the legal research service Lexis-Nexis, you'll probably have to go down to your county law library to access them. Even the smallest county library should still have the hard copy sets on the shelves, consisting of about a hundred and sixty large volumes each. As a citizen of your county, you have free access to your county law library, which you'll usually find adjacent to your county courthouse.

As lengthy as this section is, I've included only a small sampling of what's available on the topic, but it should provide a starting place for those inclined to further study. Although the citations at the end of the articles are highlighted, those links will not work for you as they are tied in to Nexis/Lexis. I include them for those who might want to go to the law library and do further legwork.

For those interested in digging into older books, I once held a dusty old tome called Pope's Dictionary of the Law, but I've not seen it since and find no reference to it online. Bouvier's has been reprinted in both the 1856 and 1914 editions, so you should be able to find them. The early editions of Black's Law Dictionary define Law of the Land as it has traditionally been understood, but recent editions are beginning to also include a definition more reflective of modern usage side by side next to the actual one. This is unfortunate, but inevitable I guess, as dictionaries tend to reflect changes in word meanings no matter how far they stray from their roots.

Among the works I had hoped to get to but didn't was the 20-odd volume set of West's Words and Phrases, which is a wonderful resource for looking up practically any legal term or maxim of law ever uttered. Again, that should be available at your local law library, but you'll find that most definitions of Law of the Land and Due Process use many of the same sources over and over, going back to English and American antiquity, so there's a lot of redundancy anywhere you look.

So, if you're a hopeless Obsessive-Compulsive like me, dig in. The rest of you can skip down to the comment section, which I expect you'll find more interesting.

To begin, let's look at a handful of citations from various U.S. Federal Courts:

“Due process oflaw,” within Const. Amends. 5 and 14, is equivalent to the “lawoftheland,” and is intended to protect the citizen against arbitrary action, and to secure to all persons equal and impartial justice U.S. v Yount District Court, W.D. Pennsylvania. October 21, 1920 267 F. 861

Due process oflaw, under the Fifth and Fourteenth Amendments, requires that action by a state through any of its agencies must be consistent with fundamental principles of liberty and justice which lie at base of our civil and political institutions and which not infrequently are designated as thelawoftheland. Colon-Rosich v People of Puerto Rico United States Court of Appeals First Circuit. June 5, 1958 256 F.2d 393

“Due process oflaw,” guaranteed in both the fifth and fourteenth amendments to the Constitution, U.S.C.A., means thelawoftheland. The guaranty implies the administration of equal laws according to established rules by competent tribunals having jurisdiction and proceeding upon notice and hearing. U.S v Billings Circuit Court, S.D. New York. March 8, 1911 190 F. 359

“Due process oflaw” is process due according to thelawoftheland. Walker v Sauvinet Supreme Court ofthe United States October 1, 1875 92 U.S. 90

The words, “thelawoftheland,” in Const.R.I. art. 1, § 10, mean due process oflaw, in which is included the right to contest the charge, and be discharged, unless it is proved. Green v Briggs Circuit Court, D. Rhode Island. November 1, 1852 1 Curt.C.C. 311

U.S.C.A.Const. art. 1, § 10, prohibiting a deprivation of property or liberty except by thelawoftheland, refers to due process oflaw, which includes a right to contest a criminal charge, and to be discharged unless it is proved. Green v Briggs, Supra

The phrase "law of the land" has two connotations of constitutional dimension. In general usage it refers to a HIGHER LAW than that of COMMON LAW declaration or legislative enactment. As a result of the SUPREMACY CLAUSE, the Constitution is such a higher law; it is the "supreme law of the land." In the exercise of JUDICIAL REVIEW, the SUPREME COURT claims the office of ultimate interpreter of the Constitution. It has thus become commonplace to think of decisions of the Court as the law of the land.
A second connotation has a specialized meaning that reaches far back into English history and leaves its indelible mark on American constitutional law. In 1215, the barons of England forced King John to sign MAGNA CARTA, pledging his observance of obligations owed to them in return for their fealty to him. Among the provisions was one that declared (in translation from the Latin): "No freeman shall be taken or imprisoned or dispossessed or outlawed or banished, or in any way destroyed, nor will we go upon him, nor send upon him, except by the judgment of his peers, or by the law of the land." Magna Carta was necessarily a feudal document, but this provision was so worded that it retained meaning long after feudalism gave way to the modern constitutional state.

The term "law of the land" consequently continued in English usage, representing that body of FUNDAMENTAL LAW to which appeal was made against any oppression by the sovereign, whether procedural or substantive. By 1354 there had appeared an alternate formulation, "due process of law." In his Second Institute of the Laws of England (1642), Sir EDWARD COKE asserted that "law of the land" and "due process of law" possessed interchangeable meanings; nevertheless, the older version was not thereby supplanted. The PETITION OF RIGHT (1628) played no favorites with the two terms, demanding "that freemen be imprisoned or detained only by the law of the land, or by due process of law and not by the king's special command, without any charge."

In the politically creative period after Independence, American statesmen preferred "law of the land" to "due process," apparently because of its historic association with Magna Carta. All eight of the early state CONSTITUTIONS incorporating the guarantee in full or partial form employed the term "law of the land"; and the same was true of the NORTHWEST ORDINANCE (1787). The first appearance of "due process of law" in American organic law occurred in the Fifth Amendment to the United States Constitution (1791). But that switch of usage did not displace "law of the land." Throughout the nineteenth century state constitutions and state courts spoke in one voice or the other, or even both. As of 1903 a listing by THOMAS M. COOLEY of state constitutions incorporating the legacy from Magna Carta showed "law of the land" outrunning "due process of law." The trend subsequently has been to the latter phrase; yet a 1980 count found eleven states still expressing the guarantee as "law of the land."

The Glorious Revolution of 1688, embodying the political theory that parliamentary enactment was the practical equivalent of the "law of the land," presented a dilemma in interpretation when the versions of the guarantee were introduced into American thought and incorporated into most American constitutions. Legislative supremacy was unacceptable in the New World; the American view was that when sovereignty changed hands the English concept of limitations upon the crown now applied to the legislative as well as the executive branch. It followed that to construe the guarantee as forbidding deprivation of life, liberty, or property except by legislative enactment would be to render its protection meaningless. The puzzlement of American judges is understandable; only in the latter part of the nineteenth century had the concept been fully disentangled from the related concepts of regularized legislative process and SEPARATION OF POWERS.

The guarantee inherited from Magna Carta is unusual among constitutional limitations. On its face it is not absolute but conditional. The government may not act against persons except by the law of the land or by due process. The thrust is arguably procedural, suggesting original intent may have been to guarantee the protection of a trial. But it can carry substantive meanings as well; those meanings emerged early and had fully developed in England by the late seventeenth century.

Although the wording and position of the state constitutional guarantees varied—some using "law of the land," others "due process of law"; some appending the guarantee to a list of procedural rights, others making it a separate provision—the variation made little difference in judicial response at the procedural level. Not so, however, with respect to substantive content. Where, as in the constitutions of the Carolinas, Illinois, Maryland, and Tennessee, the wording was close to a literal translation of Magna Carta, the guarantee was extended to VESTED RIGHTS, independently of the criminal provisions of the procedural connotation. On the other hand, Connecticut and Rhode Island courts sustained PROHIBITION laws in the 1850s, holding that the phrase "due process of law" in their state constitutions was so enmeshed with entitlements of the criminally accused as to preclude inclusion of substantive right. A third series of cases, from Massachusetts, New Hampshire, New York, and Pennsylvania, read substantive content into the guarantee despite close interrelation with procedural protections. WYNEHAMER V. NEW YORK (1856) requires special consideration. In that case the state's highest court invalidated a prohibition law, insofar as it destroyed property rights in existing liquor stocks, resting its decision on separate constitutional guarantees of both "due process" and "law of the land." Contrary to the opinion of some scholars, Wynehamer was not overruled by Metropolitan Board v. Barrie (1866); the former case applied to a law with retroactive application, the latter to one that was purely prospective.

The Fifth Amendment associates "due process" with other constitutional guarantees clearly procedural in character, and separates the guarantee of due process from the RIGHT AGAINST SELF-INCRIMINATION only by a comma. Yet in major decisions, DRED SCOTT V. SANDFORD (1857), Hepburn v. Griswold (1870), and Adair v. United States (1908), the Supreme Court found substantive content in the clause.

In the FOURTEENTH AMENDMENT, due process is not linked to criminal procedure protections, but resembles those state constitutional provisions that had been held in state courts to have substantive content. However, the Supreme Court has disregarded the distinction between the two due process clauses in the federal Constitution. The Court has been abetted by numerous COMMENTATORS ON THE CONSTITUTION who, intent on denying the substantive element in due process, have ignored or misinterpreted the history of state constitutional guarantees of "due process" and "law of the land." The freedom from procedural connotation of Fourteenth Amendment due process made easier the path of substantive content from dissent in the SLAUGHTERHOUSE CASES (1873), to reception in Chicago, Milwaukee & St. Paul Railway Company v. Minnesota, (1890), to full embrace in LOCHNER V. NEW YORK (1905). The Court's acceptance of the INCORPORATION DOCTRINE, with consequent reading into the Fourteenth Amendment of the various procedural protections enumerated in the BILL OF RIGHTS, largely equates the content of the two due process clauses. This development has written the final chapter in the reinterpretation of "law of the land."

FRANK R. STRONG (1986) Bibliography

HOWARD, A.E. DICK 1968 The Road from Runnymede: Magna Carta and Constitutionalism in America. Charlottesville: University Press of Virginia.

REMBAR, CHARLES 1980 The Law of the Land: The Evolution of Our Legal System. New York: Simon and Schuster.

Due Process of Law

A 1354 act of Parliament reconfirming MAGNA CARTA paraphrased its chapter 29 as follows: "That no man … shall be put out of Land or Tenement, nor taken, nor imprisoned, nor disinherited, nor put to death, without being brought in Answer by dueProcess of Law." This was the first reference to dueprocess in English legal history. Chapter 29 of the 1225 issue of Magna Carta originally concluded with the phrase "by the LAW OF THE LAND." Very probably the 1354 reconfirmation did not equate "the law of the land" with "dueprocess of law"; the two were not synonymous. Dueprocess in the 1354 enactment, and until the seventeenth century, meant an appropriate COMMON LAW writ.

In the Five Knights Case (see PETITION OF RIGHT), JOHN SELDEN, the great parliamentarian, said in defense of the accused that "No freeman shall be imprisoned without dueprocess of law," meaning that the "law of the land" was an equivalent for "either INDICTMENT or PRESENTMENT." Sir EDWARD COKE, in his commentary on Magna Carta, also equated dueprocess with the law of the land, meaning regularized courses of proceeding in common law prosecutions for crime. Coke's primary claim was that the law of the land was the common law, one of several rival systems of law then prevalent in England. When abolishing the courts of High Commission and Star Chamber, Parliament in 1641 quoted the dueprocess phraseology of the act of 1354 and added that trials by "ordinary Courts of Justice and by the ordinary course of law" protected property right against arbitrary proceedings. JOHN LILBURNE and his Levellers agreed, but they also asserted that dueprocess signified a cluster of procedural protections of the criminally accused, including TRIAL BY JURY, the RIGHT TO COUNSEL, and the RIGHT AGAINST SELF-INCRIMINATION. By the mid-seventeenth century dueprocess and the law of the land referred to PROCEDURAL DUEPROCESS in both civil and criminal cases. The "law of the land" usage, however, was the dominant one, and "dueprocess" continued to be used in the very limited sense of a writ appropriate to a legal proceeding. A century later WILLIAM BLACKSTONE discussed various processes—original, mesne, and final—without discoursing on dueprocess of law per se. After referring to indictment in capital cases and the principle that "no man can be put to death without being brought to answer by dueprocess of law," Blackstone referred to the different writs that summoned an accused to trial in MISDEMEANOR and FELONY cases.

In the American colonies the usage was similar. In deference to Magna Carta, the "law of the land" formulation was by far the most common, although a variety of paraphrases existed. The MASSACHUSETTS BODY OF LIBERTIES (1641) guaranteed that one's life, liberty, and property could not be deprived except by "some expresse law of the Country warranting the same, established by a generall Court and sufficiently published"—that is, by known, standing law. West New Jersey protected the same substantive rights by a clause guaranteeing "due trial and judgment passed by twelve good and lawful men." New York in 1683 sought a charter that incorporated the famous chapter of Magna Carta with a clause requiring "by due course of law." Probably the first American reference to "dueprocess of law" was in a Massachusetts act of 1692 endorsing chapter 29 of Magna Carta.

During the controversy with Great Britain leading to the American Revolution, Americans frequently spoke of trial by jury, FUNDAMENTAL LAW, the law of the land, no TAXATION WITHOUT REPRESENTATION, and a gamut of CIVIL LIBERTIES, but rarely referred to dueprocess of law. Their references to the "law of the land" had no fixed or single meaning. They meant by it a variety of safeguards against injustice and abuses of CRIMINAL PROCEDURE; they equated it with NOTICE, hearing, indictment, trial by jury, and, more generally, with regular forms of common law procedure and even the fundamental law itself or constitutional limitations on government. The "law of the land" was an omnibus phrase whose content ranged from specific writs to the concept of CONSTITUTIONALISM, and the phrase connoted protection of substantive rights—life, liberty, and property—as well as various precedural rights. Later, dueprocess inherited all the content and connotations of law of the land.

All the first state constitutions used the "law of the land" phraseology, as did the NORTHWEST ORDINANCE OF 1787. No state constitution included a dueprocess clause until New York's of 1821, although Mississippi's constitution of 1817 referred to "due course of law." Before the Civil War, only five state constitutions referred to "dueprocess of law." All others had the older "law of the land" equivalent.

The first American constitution to include a dueprocess clause was the Constitution of the United States in its Fifth Amendment, ratified in 1791. The clause reflected JAMES MADISON'S preference. For reasons unknown, he recommended that no person should be "deprived of life, liberty, or property without dueprocess of law." The four states which had ratified the Constitution with recommendations for a comprehensive BILL OF RIGHTS urged versions of chapter 29 of Magna Carta, although only one, New York, referred to "dueprocess of law" rather than "law of the land." The dueprocess clause of the Fifth Amendment was ratified without any discussions that illumine its meaning. Although every clause of the Constitution is supposed to have its own independent meaning, rendering no clause tautological, the dueprocess clause was an exception. It pacified public apprehensions, bowed toward Magna Carta, and reinforced specific rights such as trial by jury.

When the Supreme Court construed the dueprocess clause of the Fifth Amendment for the first time in MURRAY V. HOBOKEN LAND COMPANY (1856), it declared that although dueprocess limited all branches of the government, it had only the procedural connotations that derived from the settled usages and modes of proceeding which characterized old English law suited to American conditions. Chief Justice ROGER B. TANEY'S opinion in DRED SCOTT V. SANDFORD (1857) passingly employed SUBSTANTIVE DUEPROCESS OF LAW, which had cropped up in some state decisions and in ABOLITIONIST CONSTITUTIONAL THEORY as well as proslavery theory. The FOURTEENTH AMENDMENT'Sdueprocess clause, taken verbatim from the Fifth's, proved to be the turning point in the national acceptance of "dueprocess of law" as the common usage rather than the "law of the land" usage. In the last third of the nineteenth century, state constitutions finally substituted "dueprocess" for "law of the land," and judicial decisions, state and federal, as well as legal treatises, expounded "dueprocess of law," making it the most important and influential term in American constitutional law.

LEONARD W. LEVY(1986) Bibliography

HOWARD, A.E. DICK 1968 The Road from Runnymede: Magna Carta and Constitutionalism in America. Charlottesville: University Press of Virginia.

JUROW, KEITH 1975 Untimely Thoughts: A Reconsideration of the Origins of DueProcess of Law. American Journal of Legal History 19:265–279.

The term "due process of law" as used in the United States Constitution has been repeatedly declared to be the exact equivalent of the phrase "law of the land,"1 as used in the Magna Carta,2 and in some state constitutions.3

"Due process of law" is synonymous or interchangeable with, or equivalent to, "law of the land," a phrase appearing in many state constitutions.1 The phrases "law of the land" within the meaning of a state constitution and "due process of law" as used in the Fourteenth Amendment to the Federal Constitution, are legal equivalents.2

"Law of the land" implies a general public law, equally binding on every member of the community,3 and it includes established principles of procedure and equity.4

Courts have sometimes made use of expressions which would indicate a view that the term "the law of the land," as used in the state constitutions, refer to some particular body of laws then in existence;5 but its meaning cannot be so limited, for that would deny any power in a legislature to amend or repeal old laws or to enact new ones.6

The guarantee of due process of law is one of the most important to be found in the United States Constitution or any of the amendments thereto.1 It has been stated that no other phrase known to the American and English law comprehends so much that which is basically vital in the protection of human rights and the redress of human wrongs as the phrase "due process of law."2 The notion reflects and describes the concept of ordered liberty.3

The Due Process Clause guarantees more than fair process, and the "liberty" it protects includes more than a mere absence of physical restraint.4 For instance, the right to hold a specific private employment and to follow a chosen profession free from unreasonable governmental interference comes within the liberty and property concepts of the Fifth Amendment.5 Moreover, due process requires that matters have sufficient contacts with a state in order for that state's laws to be applied; the parties' consent to apply the law of a particular forum state is not sufficient standing alone.6

Due process of law is the primary and indispensable foundation of individual freedoms. It is the basic and essential term in the social compact which defines the rights of the individual and delimits the powers which the state may exercise.7 The fundamental guarantee of due process is absolute and not merely relative.8 It does not have regard merely to enforcement of the law but searches also the authority for making the law, and it is not merely a political right but is a legal right assertable in the courts.9 By reason of this guarantee, everyone is entitled to the protection of those fundamental principles of liberty and justice which lie at the basis of all our civil and political institutions10 and that have long been recognized under the common-law system11 and which are not infrequently designated as the "law of the land."12

A state's obligations under the 14th Amendment are not simply generalized ones; rather, the state owes to each individual that process which, in light of the values of a free society, can be characterized as due.13 In evaluating a due process claim, a court must determine whether a property or liberty interest exists and, if so, what procedures are constitutionally required to protect that right.14

Observation:

When a particular Bill of Rights provision has been made applicable to the states by the 14th Amendment15 and provides an explicit textual source of constitutional protection against a particular sort of government behavior, that amendment and not some more generalized notion of substantive due process must be the guide for analyzing claims.16

The right to due process of law is not a right wholly dependent for its existence upon any statute or constitutional provision, because the right to enjoy life and property is a fundamental right existing prior to the adoption of the United States Constitution.1 One due process test is to ascertain what were settled usages and modes of proceeding under the common and statute law of England before the Declaration of Independence and whether such usages and modes of proceeding were followed in the United States after it became a nation.2

Recognition of the rule that a person shall not be deprived of life, liberty, or property without an opportunity to be heard in defense of his or her right is of ancient origin, being older than written constitutions, and having been interwoven in the common law long prior to the adoption of the Magna Charta.3

The Magna Charta established the right to the preservation of life, liberty and property subject to the "law of the land," which is now more commonly refer to as due process of law.4 The proposition that a person shall not be deprived of life, liberty, or property without due process of law is as old as any principle of civilized government and is found in the Magna Charta and in substance, if not in form, in nearly all constitutions adopted by the several states.5 Due process is founded on the principles of natural justice,6 and it is the foundation of the constitutional guarantees of due process of law.7 It was expressed in the provision of the Magna Charta which protected every freeman in the enjoyment of natural rights unless deprived of them "by the Judgment of his Peers, or the Law of the Land,"8 and from this original are derived the guarantees expressed in the various American constitutions.9

The phrase "due process of law" apparently originated in American judicial parlance with Lord Coke, who in construing the language of the Magna Charta "That no man shall be taken or imprisoned—or deprived of life, liberty or property but by the judgment of his peers or the law of the land" said that phrase "law of the land" meant "due process of law."

26 comments:

Hi Rock, I really enjoyed your remarks and agree completely with your assesment on what the "law of the land" actually is. I couldn't tell you the number of debates that I have had and the deep frustration that I have had on this topic. The Prophet Joseph said that we would be foolish to live any law that is not contitutional. I eventually realized that those that believe "the law of the land" is any thing the government tells you it is, are not Israelites. The Lord said that in the last days He would put His law in the hearts of His people and in their inward parts. I came to believe this because of the extreme attitudes of some LDS people. One in paticular I remember, I asked this good LDS man if he would kill his innocent neighbor if the government or the "law of the land" told him to and he replied that he would. So I have decided that these types are not Israelites but are gentiles, and quit debateing such. The prunneing will take care of such unintelligent psuedo Mormons. Sincerely Brand Nu Thornton

I just wanted to let you know that I have not received updates to my feed through Google of your last 2 posts. I have no idea if you can fix it, or if it is their problem. I even deleted and resubscribed, but it remains stuck on the last installment of Infallible Authority.

This post is very good, and very confusing. Not because I can't wrap my head around the change in the definition of the law of the land (I wasn't raised Mormon), but because of all the legalese. Oh well.

I probably already mentioned this in the previous post, but I found your explanation of the law of the land very helpful in resolving the myriad apparent contradictions that occur when we subordinate the commandments to human legislation. It just never made sense to me. Why would God even bother giving men a law if he included such a gigantic loophole that they were justified in disobeying it however they wanted -- they just need the stamp of (earthly) government approval on their behavior! It would be impossible to establish the Kingdom of Heaven under those circumstances. You can't bring peace to Earth if you're required to engage in violence at the whim of others, for example. Such a God is even more dim-witted than I am! I couldn't reconcile that with what I've been taught about God since childhood.

Well, it should've been obvious where to look for the answer: If it didn't make sense, then one of my premises was wrong. In this case I was mistaken in my understanding that the scriptural injunction to obey the law of the land meant that we should obey anything legislated by our government... Ah, well, the Man above turned out smarter than me after all. God - 1, Jeremiah - 0.

Dead Poet,You are the second blogger who has told me that the updates are not occurring. Beats me why this is happening, but I'm looking into it. Hopefully someone at Blogspot help will hear my plea.

And yes, all that legalese is admittedly overkill. But some people, like the obstreperous member I mentioned at the start of the addendum, will refuse to entertain even the possibility that someone else's position could be valid unless they are hit over the head with it by the proper "authorities."

At least the Baptists are preaching Christ's gospel of 'unconditional true love' in marriage, more than any other church today, with their movie "Fireproof".

While the LDS church is preaching & encouraging the disintegration & abandonment of marriage & family, by allowing divorce & remarriage for any reason whatsoever, no questions asked, over & over as many times as you want, without any consequences & even with the added incentive to be able to collect many wives by multiple divorces & sealings. Thus their high divorce rate.

This post is spot on. All too often we are taught to accept the unrighteous dominion of those in power, whereas God has commanded us to fight against such corruption wherever it is found. Various scriptures support this.

Some examples include:

1) In Mosiah 19 we see Gideon attempting to kill King Noah. His rebellion against the government was what saved the Nephites from the Lamanite invasion. He is also held up as a paragon of righteous action, not as a wicked man.

2) Captain Moroni in Alma 60 threatens to kill all the corrupt leaders that are withholding support to the troops. This is direct rebellion against the authority of man, but this letter is contained in a book where only less than a hundredth of the record is written. It is held as an archetype of righteous behavior, and even Pahoran praises him for it.

3) Many prophets of old fought against wickedness in the leaders of their people, such as Jeremiah, Isaiah, just to name a few. In fact if Jeremiah had not rebelled, Lehi never would have found the truth, and as a consequence we wouldn't have the Book of Mormon.

4) Even Christ himself, the exemplar of all righteousness actively cast out the wicked money changers from the temple of God. He rebelled against wickedness and corruption in Israel, which was supposed to be God's people. He didn't bow down to nor cow-tow beneath the gaze of the Sanhedrin, nor Herod nor Pilate.

In JST, MARK 9:42–47 we read:“42. And again, if thy foot offend thee, cut it off; for he that is thy standard, by whom thou walkest, if he become a transgressor, he shall be cut off.

43. It is better for thee, to enter halt into life, than having two feet to be cast into hell; into the fire that never shall be quenched.

44. Therefore, let every man stand or fall, by himself, and not for another; or not trusting another.

45. Seek unto my Father, and it shall be done in that very moment what ye shall ask, if ye ask in faith, believing that ye shall receive.

46. And if thine eye which seeth for thee, him that is appointed to watch over thee to show thee light, become a transgressor and offend thee, pluck him out.

47. It is better for thee to enter into the kingdom of God, with one eye, than having two eyes to be cast into hell fire.”

Ultimately as disciples of Christ we must not accept authority besides His, especially in His church and kingdom. Any worldly authority that we obey is only because we accept what they teach and say. We must discern for ourselves the truthfulness and righteousness of their commands and act accordingly. We are commanded to rebel and fight against wickedness no matter where it lay, which teaching is directly contrary to what the current “leaders” of the Church teach, so as to exert greater control over the membership. Is this not unrighteous dominion? Is this not wickedness? Is this not the very works of Satan that we were born to fight against? Yes it is.

Thanks Rock - I didn't understand the difference between law of the land and maritime law. Great Explanation.

It helps me understand these two scriptures a little better.

1 Nephi 14:11-12 And it came to pass that I looked and beheld the whore of all the earth, and she sat upon many waters; and she had dominion over all the earth, among all nations, kindreds, tongues, and people. And it came to pass that I beheld the church of the Lamb of God, and its numbers were few, because of the wickedness and abominations of the whore who sat upon many waters; nevertheless, I beheld that the church of the Lamb, who were the saints of God, were also upon all the face of the earth; and their dominions upon the face of the earth were small, because of the wickedness of the great whore whom I saw.

Revelation 17:1 And there came one of the seven angels which had the seven vials, and talked with me, saying unto me, Come hither; I will shew unto thee the judgment of the great whore that sitteth upon many waters:

I too, didn't receive updates to my google reader until the post after this one, I read your last one and many of the comments, good discussion.

As for the law of the land. That is the conclusion I came to also. Just from reading the scriptures you can come to the same conclusions. It really is a shame that there are so many that don't understand this concept, of course it is much clearer to me now that I read you last post and much of this one.

Really, when we believe the law of the land means we must obey all the insane ideas of our "rulers" we throw away all the work that the saints did to throw off the oppression of the state, in the Book of Mormon and bible.

Now, the next step, get people to believe that taxation is theft :) .

I just got done reading Mosiah, it is interesting how they were living God's law under Mosiah and King Benjamin (and others) and neither taxed their people. It is also interesting how Mosiah even held elections for a new king before going the way of the Judges, I didn't notice that until this reading.

People confuse Christ as our King like He would be an earthly king, but that's just God using people's "own language" so people get confused. If we take Benjamin and Mosiah as the ideal kings then what would Christ be as a king? I think he wouldn't be any different than he is now.

You should consider putting this up on LDS Liberty. I'm sure they would like to have such a well thought out article on their blog. And, if I'm lucky, the lady would read it and then I could listen to it instead of read through all of it :) .

Regarding the comments about "Mormons for a Baptist President", there is this website, which has some nice quotes from President Hinckley in support of the principles that Ron Paul supports. http://mormonsforronpaul.com/

Wow, that video on Mitt Romney was interesting. Here in Australia, LDS are wondering if the media will take our religion (and I mean religion, not necessarily 'church') to school with dirty play- personally, it's evident they don't need to work too hard...Romney does a fine enough job himself. Hopefully the 'shouting from the rooftops' about all those things the church (TM) has done since Brigham asserted dominant control & that Joseph would be ashamed of, will be the beginning of the cleansing so desperately needed before the light can truly shine on the hill.

I know you're busy, and I know you have problems to deal with - but if you'd throw a few crumbs (new posts) out here to us, we'd appreciate it. Like, how about about three posts from the topics on the list you made of possible topics for your blog. Pretty please?

Coming up, Toni, and thanks for your interest. As you know, first Connie had a flirt with death and then I had my own close call (blood poisoning)from which I am recovering slowly. The motivation to sit down and write something is a bit daunting at the moment. But I will have a new post up this month, I promise.

I know there always seems to be some trial going on in your life, and it's a miracle that you write the posts you do. I appreciate the time you take to post on here (and I don't think I'm the only one). My best to you and Connie.

The only moral laws are the ones which follow the ten commandments and the non-aggression principle. Government is based on force and operated by theft. It is a completely immoral institution which demands subjection to its 'authority' and will initiate violence for non-compliance to any of its laws.

Actually, Christ's laws are backed up by a certain type of force or insistance. When Christ returns and installs his own government, there will be no tolerance for sin, thus there will be punishment applied for sin.

Moroni, with his perfect understanding, applied righteous force upon those who would not be righteous & do their responsibilities to protect freedom, family or religion.

Imagine if Moroni lived today & what he would think of & want to do about most everyone, even in the Church, including most all church leaders from the top to the bottom, who go along with evil & don't stand for freedom & family, but who instead voluntarily support socialism & the disintegration of the family, etc.

RIghteous civil leaders in the Book of Mormon used force to punish serious sin.

But the difference between Christ & Satan is Christ gives us a choice to either obey his laws or lose our freedom, Satan does not even want us to have a choice at all to error or choose right. But both Christ & Satan use force. If Moroni didn't use force I don't know who did.

This post is very useful and could clear up a lot of confusion in the LDS mindset that has more and more become corrupted, ever since the first manifesto. I must admit that the use of language in the D&C is a bit archaïc and thus difficult to understand in our time (in my own D&C, which is a weird translation into Dutch, the real meaning of "Law of the land" is even harder to figure out). As a result some ideas that go around in the church were not always clear to me in relation to the Gospel of Jesus Christ that I know from the New Testament. It seems the current LDS leadership is explaining things quite the opposite from the scriptural meaning, so you can imagine how off-rails the institution has become over the years. Also the concept of the government being the beast that would wear out the saints of the most High, eventually, as prophesied by Daniel and John the revelator, has completely lost. The explanation in this post is excellent. Thanks.I hope you and your spouse are doing better by now (2015).